Title: Robert Florio and Fran Florio, d/b/a Ralston Beach; H. "Stew" McDonald, d/b/a/ Stew's Ski School, and Tampa Ski-Bees, an unincorporated association, Appellants, v. State of Florida ex rel. A. L. Epperson et al., Appellees
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Title: Robert Florio and Fran Florio, d/b/a Ralston Beach; H. "Stew" McDonald, d/b/a/ Stew's Ski School, and Tampa Ski-Bees, an unincorporated association, Appellants, v. State of Florida ex rel. A. L. Epperson et al., Appellees
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: Jake Varn Collection - Robert Florio and Fran Florio, d/b/a Ralston Beach; H. "Stew" McDonald, d/b/a/ Stew's Ski School, and Tampa Ski-Bees, an unincorporated association, Appellants, v. State of Florida ex rel. A. L. Epperson et al., Appellees (JDV Box 86)
General Note: Box 22, Folder 2 ( Groundwater - Old Florida and California Cases - 1900's ), Item 20
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FLORIO v. STATE
Cite as, Fla., 119 So.2d 305


Fla. 305


2. Whether the pleadings in the deposi-
tion upon which the summary decree was
based will support a finding of an absence
of a genuine issue of any material fact?
The law of Kentucky is apparently gov-
erned by the cases above-cited as follows:
"Where the consideration is supplied
by one person but title is taken in an-
other person's name, and there was an
agreement expressed or implied by the
conduct of the party that legal title
would be held in trust or for the use
of the person who furnished the
money that the Statute abrogating
common law or equitable resulting
trusts does not apply."

The cited case of Evans v. Payne ap-
proves the language of Smith v. Smith,
both supra, as follows:
"The kind of equitable resulting trust
abolished by KRS 381.170 is one aris-
ing upon the naked fact that one fur-
nished the consideration to buy land
while the title thereto is taken by an-
other, without any agreement as to
the use or the trust." [258 S.W.2d
921]
It was testified by Mrs. Shepard that she
understood the conveyance of the property
to herself and husband from plaintiff Ried-
ling was a gift. Her statement was that
Mr. Riedling gave her the money, $20,000,
to pay for the property for services ren-
dered in helping him in his business affairs.
It does not appear that Mrs. Shepard gave
any explanation as to why title to the
property was taken in both the name of
herself and her husband. It is difficult to
see how there could be any valid agreement
for the conveyance of property to husband
and wife without the agreement applying
to both husband and wife. It further ap-
pears that Mr. Shepard knew of the pay-
ment of $3,000 to Mr. Riedling, but had no
explanation for that.

These instances indicate to us that there
are genuine issues of fact which should be
resolved by the Chancellor and for that
119 So.2d-20


reason we reverse this cause and
the same for further proceedings
consistent with this opinion.


remand
not in-


ALLEN, C. J., and SHANNON, J.,
concur.








Robert FLORIO and Fran Florlo, d/b/a Ral-
ston Beach; H. "Stew" McDonald, d/b/a
Stew's Ski School, and Tampa Ski-Bees,
an unincorporated association, Appellants,
v.
STATE of Florida ex rel. A. L. EPPERSON
et al, Appellees.
No. 1215.

District Court of Appeal of Florida.
Second District
April 6, 19"60.


Suit by riparian lake owners to enjoin
the operation of a skiing school on the lake
as a nuisance. From a decree for the own-
ers in the Circuit Court for Hillsborough
County, I. C. Spoto, J., the defendants ap-
peal. The District Court of Appeal, Kan-
ner, J., held that the evidence established
the maintenance of a nuisance; that the
complaint was sufficient; that an injunction
against an unincorporated association was
improper where it was not founded upon
service on the members individually; and
that the injunctive decree was too broad
and should be modified.

Affirmed in part and reversed in part.


1. Nuisance ='33
In action by lake riparian owners to
enjoin defendants from conducting a water
skiing school on the lake as a nuisance,
evidence sustained findings of the chancel-
lor and his determination that a nuisance







119 SOUTHERN REPORTER, 2d SERIES


( was created and maintained in violation of
the statutes. F.S.A. 64.11, 823.01, 823.-
05.

2.-Nuisance =32
In action by lake riparian owners to
enjoin defendants from conducting a water
skiing school on the lake as a nuisance,
complaint stated a cause of action. F.S.A.
64.11, 823.01, 823.05.

3. Appeal and Error ~=181, 248, 724(1), 758(1)
Where there is jurisdictional or other
fundamental error of law, it may be no-
ticed initially by an appellate court and
this is true whether it has been argued in
the briefs or made the subject of an as-
signment of error or of an objection or an
exception in the court below. 31 F.S.A.
Florida Appellate Rules, rule 3.7, subd. i.

4. Appeal and Error =185(1)
In suit by lake riparian owners to en-
join water skiing on the lake as a public
nuisance, issue of whether the chancellor
erred in allowing suit against unincorpo-
rated association and in entering a decree
restraining the association from using the
lake for water skiing was fundamental in-
volving jurisdiction and could be raised for
the first time before the appellate court.
S 31 F.S.A. Florida Appellate Rules, rule
3.7, subd. i.

5. Associations 0-20(1)
An unincorporated voluntary associa-
tion organized for business or other pur-
poses was not under common law either
considered as having any other status than
that of a partnership in whatever it under-
took and such association could sue or be
sued only in the name of its members and
liability had to be enforced against each
member.

6. Associations C=20(4)
An unincorporated voluntary associa-
tion being essentially different from a co-
partnership constituting a mercantile or
other firm did not come within the purview
of the statute providing for service of


process with respect to copartnerships of
several persons composing a mercantile or
other firm. F.S.A. 47.15.

7. Associations =20(4)
Since there is no statutory authority
to sue and be sued in the association's com-
mon name in Florida jurisdiction, the com-
mon-law rule for making effective service
on a voluntary association must be pursued.
F.S.A. 47.15.

8. Associations e=20(4)
In suit by riparian lake owners to en-
join water skiing on a lake as a nuisance,
an injunction against defendant unincorpo-
rated association would not lie where it was
not founded upon service on the members
individually. F.S.A. 47.15.

9. Waters and Water Courses =109
The rights of riparian proprietors to
the use of waters in a nonnavigable lake
are equal and each riparian owner has the
right to use water in the lake for lawful
purposes so long as his use is not detri-
mental to the rights of other riparian
owners.

10. Waters and Water Courses C=114
The use of lands which border on
waters of a nonnavigable lake for pur-
poses of pleasure, recreation and health
is a use which requires a remedy on behalf
of a riparian owner where there is unrea-
sonable interference.

I1. Waters and Water Courses =l114
One riparian owner is not entitled to
use a nonnavigable lake to the exclusion
of other riparian owners and each owner
of riparian rights is entitled to reasonable
use of the lake and where an owner's law-
ful use is unreasonably interfered with,
that owner is entitled to injunctive relief.

12. Nuisance 0=3(1)
Water skiing is not a nuisance per se
and normally is a legitimate and wholesome
pursuit.


306 Fla.








FLORIO v. STATE
Cite as, Fla., 119 So.2d 305


13. Injunction -=204
An injunctive order should never be
broader than is necessary to secure to the
injured party, without injustice to the ad-
versary, relief warranted by the circum-
stances.

14. Injunction =:204
An injunctive order should adequately
particularize especially where some activi-
ties may be permissible and proper and
should be confined within reasonable limi-
tations and phrased in such language that
it can with definiteness be complied with
and one against whom the order is directed
should not be left in doubt as to what he
is required to do.

15. Nuisance =-35
In suit by riparian owner to enjoin
water skiing on a lake as a nuisance, where
the court's order was so broad as to pro-
hibit all water skiing activities by the de-
fendant ski school and prohibit the leasing
of the property by defendants to other
defendants for water skiing purposes, it
amounted to wrongful discrimination
against the defendants and should be modi-
fied to provide reasonable use by all the par-
ties of their riparian rights under appro-
priate regulations.


"Abatement of nuisances; parties, by
whom maintained.
"Whenever any nuisances as defined in
* 823.05 is kept, maintained or exists, the
state's attorney, county solicitor, county
prosecutor, or any citizen of the county
through any attorney he may select, may
maintain his action by complaint in the
proper court in the name of the state up-
on the relation of such attorneys or citi-
zen to enjoin said nuisance, the person,
or persons conducting or maintaining the
same and the owner or agent of the build-
ing or ground upon which said nuisance
exists."

"Indictment for nuisance; removal by
justice of the peace. All nuisances which
tend to annoy the community or injure
the health of the citizens in general,
* shall be indictable and punish-


Paul B. Johnson and H. Eugene Johnson,
Tampa, for appellants.

James M. McEwen, State Atty, Tampa,
for appellees.

KANNER, Judge.

The parties will be referred to as they
appeared in the court below. The cause
here on appeal was instituted by the state
attorney of Hillsborough County under the
provisions of sections 64.11,1 823.01,2 and
823.05,3 Florida Statutes, F.S.A., upon the
relation of certain complaining property
owners. Finding that certain activities
conducted and maintained from the place
of business of the defendants constituted a
nuisance in the community as denounced
by the statutes, the court entered a decree
permanently enjoining and restraining them
from these pursuits at the place where they
had been conducted.

After the complaint had been filed, the
defendants moved to dismiss, raising the
question as to whether the complaint stated
a cause of action under section 64.11 and
section 823.05, Florida Statutes, F.S.A.,
which motion the court denied. Thereupon
an answer to the complaint was filed.

Factually, it appears that the complaining
parties are riparian owners of property

able by a fine not exceeding two hundred
dollars, at the discretion of the court.
"Any nuisance which tends to the im-
mediate annoyance of the citizens in
general, or is manifestly injurious to
the public health and safety, *."
(Emphasis supplied.)
3. "Places declared a nuisance; may be
abated and enjoined. Whoever shall
erect, establish, continue, or maintain,
own or lease any building, booth, tent or
place which tends to annoy the com-
munity or injure the health of the com-
munity, as described in 823.01
shall be deemed guilty of main-
taining a nuisance, and the building, erec-
tion, place, tent or booth and the furni-
ture, fixtures and contents are declared
a nuisance. All such places or persons
shall be abated or enjoined as provided
in 64.11-64.15." (Emphasis supplied.)


Fla. 307


__ I ..... A.A.66.g- 1 __ --_ -- I __ -


- ---~- I








119 SOUTHERN REPORTER, 2d SERIES


around and running into Egypt Lake, a
lake of approximately 75 acres. The de-
fendants, Robert and Fran Florio, own and
operate as a public beach a 29 acre area on
Egypt Lake known as Ralston Beach. The
Florios leas a portion of this land to one
of the defendants, McDonald, who for two
years had been operatinE a water skiing
school on Egvpt Lake. Another defendant,
the Tampa Ski Bees, is an unincorporated
association having members who ski on the
lake.
The plaintiffs as well as the defendants
have engaged in water skiing on the lake.
The plaintiffs objected to such things as
noise, annoyance, and interference with the
rights of residents of the community and
their visitors in their use of the lake, ero-
sion of the beaches, and domination of the
lake by the defendants through the use of
high powered tow boats and through negli-
gent and reckless skiing to the extent that
ordinary use and occupancy of the lake
was rendered dangerous and unsafe for
fishing, swimming, and skiing, thus result-
ing in a dangerous condition annoying and
injuring the health of the community and
physically jeopardizing plaintiffs and their
children in use of their own property.
They also objected to a forty-five minute
ski show presented on Sunday afternoons
by the Ski Bees for patrons of Ralston
Beach. Thus, in this controversy, the in-
terests of the plaintiffs as residents and
riparian owners are opposed to the much
more extensive and essentially commer-
cialized interests of the defendants, al-
though defendants assert that their inter-
ests are legitimate and good.

It was found and held by the chancellor
after hearing that defendants, Robert and
Fran Florio, doing business as Ralston
Beach, had been leasing space on Egypt
Lake to H. "Stew" McDonald, doing busi-
ness as Stew's Ski School, and to the
Tampa. Ski Bees, an unincorporated associ-
ation; that the defendants had allowed
and participated in water skiing to such
an extent that their activities interfered
with the free use, occupancy, possession,


and enjoyment by the plaintiffs of their
own property; that these activities an-
noyed the community around Egypt Lake
and had rendered dangerous and uncom-
fortable the ordinary use and occupancy
of the lake by the parties plaintiff and their
friends; that the defendants maintained
an activity and project too big for Egypt
Lake; that defendants' activities consti-
tuted a nuisance; and that their use of the
lake had, in effect, prevented peaceful and
comfortable use by the plaintiffs of their
own property and of the lake.

A decree was then issued by the court
enjoining the skiing operations of the de-
fendants. Paragraph one of that order
pertained to the finding that the defendants
maintained a nuisance subject to injunction.
Paragraph two enjoined the Florios from
leasing their property known as Ralston
Beach, or any part of it, to the other de-
fendants for the purpose of operating a
ski school or for the purpose of skiing.
Paragraph three enjoined the defendant,
McDonald, from using Egypt Lake for op-
eration of a ski school, including skiing on
the lake. Paragraph four enjoined the
Tampa Ski Bees, an unincorporated asso-
ciation, from further use of Egypt Lake
for the purpose of skiing.

[1] The testimonnv learlv. cnnv;ncirn-
ly. and satisfactorily established that the
activities and conduct of the defendants
resulted in physical dangers and hazards
to the resident home owners and renters,
their children and visitors, in the use of
the lae; that there was usuration. depri-
vation, and unreasonable interference with
the use of the lake for fishing, swimming,
skiing and boating; that there were dam-
ages to the shores through erosion; that
there were also debris, mud, and grass
washed and thrown on the beaches; and
that such conduct created and caused a con-
tinued annoyance and discomfort to the
community around the lake. Thi is nota
complaint between neighbor and neighbor
but one created through wrongful conduct
of the defendants that has seriously af-


308 Fla.








FLORIO v. STATE
Cite as, Fla.. 119 So.2d 305


fccted the entire lake community. As the
chancellor succinctly commented, "the Court
further finds that the organization, Tampa
Ski-Bees and H. Stew McDonald, d/b/a
Stew's Ski School, maintain an activity and
project which are too big for Egypt Lake.
* *" Unquestionably the evidence sus-
tains the findings of fact of the chancellor
and his determination that a nuisance was
created and maintained in violation of the
statutes.

[2] The first of defendants' three ap-
peal points inquires whether a cause of ac-
tion was stated by the complaint. After
careful consideration we answer this ques-
tion in the affirmative, deeming it unneces-
sary to elaborate.
Under their second appeal point the de-
fendants raise the issue of whether the
chancellor erred in allowing suit against
an unincorporated association, the Tampa
Ski Bees, and in entering a decree injunc-
tively restraining that association from
using Egypt Lake for water skiing.

[3,4] We may comment in this connec-
tion that the defendant, the Tampa Ski
Bees, was sued only in its association name,
to wit, "Tampa Ski-Bees, an unincorpo-
rated association." No individual member
was made a party defendant. The answer
filed, as it concerned this defendant, was on
its behalf under the designation quoted
and did not name and represent any indi-
vidual members. This point was not raised
in the lower court but is urged here for
the first time. The injunctive decree of
the court, which is in personal in nature,
has the effect of prohibiting all members
of this unincorporated association from
skiing on Egypt Lake, even though these
individual members were not served and
were not brought into the suit as parties
defendant. The plaintiffs argue that the
defendants may not raise this issue for the
first time before this appellate court. How-
ever, the point is a fundamental one in-
volving jurisdiction. Where there is juris-
dictional or other fundamental error of
law, it may be noticed initially by an appel-


late court In re Coleman's Estate, Fla.
App.1958, 103 So.2d 237. This is true
whether or not it has been argued in the
briefs or made the subject of an assignment
of error or of an objection or exception in
the court below. Rule 3.7, subd. i, Florida
Appellate Rules, 31 F.S.A. It is rudimentary
that the benefit of this same principle is
afforded to an appellant.

(5-7] An unincorporated voluntary as-
sociation organized for business or other
purposes was not, under the common law,
either considered or recognized as having
any other status than that of a partnership
in whatever it undertook. Such association
could sue or be sued only in the names of
its members, and liability had to be en-
forced against each member. The associa-
tion was not recognized in court by its own
name. Such an unincorporated associa-
tion, being essentially different from a co-
partnership constituting a mercantile or
other firm, does not come within the pur-
view of section 47.15, Florida Statutes, F.S.
A., providing for service of process with
respect to a co-partnership of several per-
sons composing a mercantile or other firm.
Johnston v. Albritton, 1931, 101 Fla. 1285,
134 So. 563. See also the cases of Hunt
v. Adams, 1933, 111 Fla. 164, 149 So. 24;
and I. W. Phillips & Co. v. Hall, 1930, 99
Fla. 1206, 128 So. 635. Since there is no
statutory authority to sue and be sued in
the association's common name in the Flor-
ida jurisdiction, the common law rule for
making effective service on a voluntary
association must be pursued. We are not
here concerned with the doctrine of class
representation.

[8] It follows that the injunction
against the Tampa Ski Bees as provided
in paragraph four of the injunctive decree,
since it was not founded upon service on
the members individually, is without basis.
This defect, however, does not weaken the
injunction as it applies to the other defend-
ants, Florio and McDonald.
The final point argued by defendants re-
lates to the question whether the injunctive


Fla. 309


__ 1____1_ 1_1 _ I~LI1_I ~Y I _i~IIIYII








119 SOUTHERN REPORTER, 2d SERIES


decree constituted an arbitrary and unjust
discrimination against them and deprived
them of equal protection.

[9-11] The rights of riparian proprie-
tors to the use of waters in a non-navigable
lake are equal, and each riparian owner
has the right to use the water in the lake
for lawful purposes. so lone as his use is
not detrimental to the rights of the other
riparian owners. Except as to the supply-
ing of natural wants, including the use of
water for domestic purposes, it is immate-
rial what use is made if that use is lawful
and reasonable. 'Te use of lands which
border on waters of a non-navigable lake
for purposes of pleasure, recreation, and
health is a use which requires a remedy on
behalf of a riparian owner where there is
unreasonable interference. Taylor v. Tam-
pa Coal Co., Fla.1950, 46 So.2d 392. Qe
riparian owner is not entitled to use the
lake to the exclusion of other rinarian
owg rs. Each owner of riparian rights is
entitled to the reasonable use of the lake,
and where an owner's lawful ,1 ;c ,,rea-
r sonably interfered with that owner is en-
titled to injunctive relief. Duval v. Thom-
as, Fla.App.1958, 107 So.2d 148; Id., Fla.,
114 So.2d 791.

[12] The parties recognize that water
skiing is not a nuisance per se. Normally
it is a legitimate and wholesome pursuit.
The chancellor found it to be a nuisance
here because of the extent to which it was
pursued under the circumstances delineated
and determined. However, the court's or-
der was so broad as to prohibit all water
skiing activities by the defendant, McDon-
ald, doing business as Stew's Ski School,
and to prohibit the leasing of property by
defendants Florio to the other defendants
for water skiing purposes, consequently
amounting in effect to wrongful discrimina-
tion against the defendants.


[13,14] An injunctive order should
never be broader than is necessary to se-
cure to the injured party, without injustice
to the adversary, relief warranted by the
circumstances of the particular case.
Moore v. City Dry Cleaners & Laundry,
Fla.1949, 41 So.2d 865; and Seaboard Ren-
dering Co. v. Conlon, 1942, 152 Fla. 723,
12 So.2d 882. An injunctive order should
be adequately particularized, especially
where some activities may be permissible
and proper. Moore v. City Dry Cleaners
& Laundry, supra. Such an order should
be confined within reasonable limitations
and phrased in such language that it can
with definiteness be complied with, and one
against whom the order is directed should
not be left in doubt as to what he is re-
quired to do. Pizio v. Babcock, Fla.1954,
76 So.2d 654.

[15] Since the iniunctive decree ren-
dered bv the chancellor was wrongfully
discriminatory and too broad in scone. it
is subject to being, and should be. modified
so as to provide reasonable use by all
parties of their riparian rights under ap-
propriate regulations, to the end that the
defendants are not deprived and excluded
from reasonable legitimate use under the
circumstances. Therefore the cause is af-
firmed as to the chancellor's determination
of a nuisance, reversed as to the injunctive
order against the Tampa Ski Bees, and
further reversed as to restraining provi-
sions of the order as applied to the other
defendants. The cause .is remanded to the
court below for such further proceedings
as are necessary in conformity with this
opinion.

Affirmed in part and reversed in part.


ALLEN, C. J., and MORROW, R. O.,
Associate Judge, concur.


-'---~~--------'~' "


310 Fla.




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